By Texas Parole 
Did you know that over 90% of civil disputes in the UK settle before trial, often requiring tools to protect privacy and ensure enforceability? In the complex world of civil litigation, maintaining confidentiality while securing a binding agreement is crucial for businesses and individuals alike. This guide explores the Tomlin order, a powerful mechanism under the Civil Procedure Rules that allows parties to halt proceedings on agreed terms, with the settlement details kept private in a schedule. Whether you are a solicitor drafting settlements, a law student studying litigation strategy, or a business owner navigating commercial disputes, understanding the Tomlin order can provide strategic advantages. We will cover its mechanics, benefits, enforcement, and practical applications to help you make informed decisions.
What is a Tomlin Order?
A Tomlin order is a form of consent order in the English civil justice system, named after Mr Justice Tomlin from the 1927 case of Dashwood v Dashwood. It stays court proceedings on terms agreed by the parties, with those terms typically outlined in a confidential schedule attached to the order. Unlike standard court orders, the schedule forms a binding contract, allowing enforcement without new proceedings.
Imagine a commercial dispute where sensitive financial data is at stake. A Tomlin order lets parties resolve it privately, avoiding public scrutiny. The public part of the order simply states the stay and grants liberty to apply for enforcement, while the schedule holds the detailed settlement agreement.
Structure of a Tomlin Order
The order has two main parts:
- The Public Order: This includes wording like “all further proceedings in this action be stayed upon the terms set out in the Schedule hereto except for the purpose of enforcing those terms.” It may also address costs or other court powers.
- The Confidential Schedule: This contains the full terms, such as payment schedules, confidentiality clauses, or non-admission of liability.
This structure ensures the court retains oversight for enforcement but respects privacy.
Background and Legal Context
The Tomlin order originated from a practice note issued by Tomlin J in 1927, later incorporated into the Rules of the Supreme Court and now governed by the Civil Procedure Rules (CPR), specifically CPR 40.6. It aligns with the overriding objective of the CPR to save expense and deal with cases justly.
Historically, it addressed the need for enforceable settlements without full court intervention. In modern practice, it is used in various civil matters, from personal injury to commercial disputes, where flexibility is key.
Key precedents include Zenith Logistics Services (UK) Ltd v Coury [2020] EWHC 774 (QB), which confirmed that confidential schedules are compatible with open justice principles. Courts emphasize that the schedule is contractual, not judicial.
Key Benefits of Using a Tomlin Order in Litigation
Why choose a Tomlin order over other settlement methods? Its advantages make it ideal for maintaining confidentiality and flexibility.
- Confidentiality: The schedule remains private, protecting sensitive information in commercial disputes or employment matters. This is vital for businesses avoiding reputational damage.
- Enforceability: Parties can apply to court to enforce terms without starting anew, streamlining breach of contract remedies.
- Flexibility: Terms can exceed court powers, such as ongoing obligations or non-monetary actions.
- No Judgment Required: Unlike consent orders, it avoids public judgments, beneficial under Qualified One-Way Costs Shifting (QOCS) in personal injury cases.
In practice, for a business owner in a contract dispute, this means settling quietly while ensuring payment terms are binding.
Pitfalls to Avoid
While powerful, misuse can lead to issues. Ensure the public order only includes enforceable court matters; complex terms belong in the schedule. Also, courts may scrutinize confidentiality claims, as in ABC Ltd v Y [2010] EWHC 3176 (Ch).
Tomlin Order vs Consent Order
Understanding the differences is essential for litigation strategy.
A standard consent order is a court order recording settlement terms directly, making them publicly enforceable but less flexible. In contrast, a Tomlin order treats the schedule as a contract, allowing broader terms and privacy.
| Aspect | Tomlin Order | Consent Order |
|---|---|---|
| Confidentiality | High, via schedule | Low, terms public |
| Flexibility | Broad terms possible | Limited to court powers |
| Enforcement | Via application as contract | Direct court enforcement |
| Appeal | Schedule not appealable | Order appealable |
| Use Case | Complex, confidential disputes | Simple money claims |
For example, in Vanden Recycling Ltd v Kras Recycling BV [2017] EWCA Civ 354, the court highlighted that Tomlin orders allow matters beyond judicial authority.
How to Draft and Use a Tomlin Order
Drafting requires precision to ensure enforceability.
Standard Tomlin Order Wording
A typical order might read: “All further proceedings in this action be stayed upon the terms set out in the Schedule hereto, except for the purpose of enforcing those terms. Liberty to apply.” The schedule then details payments, confidentiality clauses, and remedies.
Include recitals noting confidentiality: “The parties have agreed to the terms set out in the Schedule hereto (which Schedule is confidential and therefore not to be filed at court).”
File via CE-File or post, paying any fee. Courts vary; some require justification for confidentiality. For guidance, see How to File a Claim in UK Courts.
Step-by-Step Process
- Negotiate terms.
- Draft order and schedule.
- Obtain consent from all parties.
- Submit to court for sealing.
- Monitor compliance.
In commercial disputes, include breach provisions like accelerated payments.
Enforcing a Tomlin Order
If breached, apply under CPR Part 23 to lift the stay and enforce. No need for new claims; the court treats it as a contract.
For instance, in a payment default, seek judgment for the sum. Limitation is six years from breach under the Limitation Act 1980. If disputed, the court resolves as per contract law.
Setting Aside a Tomlin Order
Setting aside requires grounds like duress, mistake, or fraud, via application under CPR 3.1(2)(p). In Heritage Travel and Tourism Ltd v Windhorst [2021] EWHC 2380, the court refused to set aside despite duress claims, emphasizing real prospects of success.
Affirmation by seeking enforcement may bar challenges.
Tomlin Orders in Commercial Disputes
In commercial settings, Tomlin orders excel for disputes involving intellectual property or contracts, where confidentiality clauses protect trade secrets. They allow terms like non-compete agreements beyond standard judgments.
A anonymized case: In a supply chain dispute, parties used a Tomlin order to settle payments privately, avoiding market disruption.
Who Is Affected and Potential Impact
Legal practitioners use Tomlin orders to craft tailored settlements. Law students learn them as key to litigation strategy. Business owners benefit by minimizing exposure in civil litigation.
Impacts include faster resolutions, cost savings, but risks if terms are unclear.
What This Means Going Forward
As courts emphasize efficiency, Tomlin orders remain vital. Monitor CPR updates for procedural changes.
Frequently Asked Questions
How to Enforce a Tomlin Order?
Apply to court under CPR Part 23; treat as contract breach.
What Are the Benefits of Using a Tomlin Order in Litigation?
Confidentiality, flexibility, and easy enforcement.
Tomlin Order vs Consent Order?
Tomlin offers privacy via schedule; consent is public but simpler.
What is Tomlin Order Schedule Confidentiality?
The schedule is private, not filed publicly.
How to Set Aside a Tomlin Order?
On grounds like duress; apply to court.
Tomlin Order for Commercial Disputes?
Ideal for sensitive business settlements.
Standard Tomlin Order Wording?
Includes stay, liberty to apply, and costs provisions.
Conclusion
Tomlin orders provide a confidential, flexible path to enforceable settlements in UK courts, balancing privacy with legal certainty. By understanding their structure, benefits, and enforcement, you can leverage them effectively in civil litigation. For personalized guidance, consult a qualified solicitor. This article is for informational purposes only and does not constitute legal advice. Stay informed via resources like the Ministry of Justice website.
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